The constitution of criminal law

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Abstract

I argue that modern criminal law was constituted to rationalize and humanize punishment. To do so, modern states need a constitutional framework that protects the rule of law and the separation of powers. In this context, criminal law protects individuals against arbitrary and cruel punishment by creating very strict conditions on the use of punishment and by limiting its abuse by authorities. Part II of the article tracks the evolution of crime and punishment and argues that criminal law only came to maturity when crime was distinguished from sin during the Enlightenment. Once crime had been freed from its theological shackles, it could be reconceptualized as one of the main instruments of the state to maintain the secular political order. Part III of the article sketches the main traits of a system of criminal law that aims to minimize crime and punishment; it also promotes peace as the harmony of mind – that is to say, a collective mental state in which individuals and groups can trust the state to create an environment in which interpersonal and institutional violence is reduced to the bare minimum and people can focus on their individual flourishing.

Original languageEnglish
Pages (from-to)27-43
Number of pages17
JournalUNIVERSITY OF TORONTO LAW JOURNAL
Volume70
Issue number1
Early online date12 Feb 2020
DOIs
Publication statusE-pub ahead of print - 12 Feb 2020

Keywords

  • Constitutional law
  • Criminal law
  • Criminal law history
  • Institutional violence
  • Punishment

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